Opinion

Philly should avoid lead paint litigation that will devastate property values | Opinion

Updated: December 6, 2018 - 6:00 AM

Curt Schroder, For the Inquirer

A view of the 1900 block of Bonitz Street, where Germantown residents Gregory Jackson and Sophia Pope's youngest son was poisoned by lead paint in a home they rented.

Cash-starved cities are looking more and more at litigation windfalls – revenue generated from lawsuits -- as a way out of their fiscal woes. Contingency-fee-chasing personal injury lawyers are only too happy to pursue revenue for municipal coffers as long as they get their one-third-or-more cut of the proceeds. But these lawsuits are not without risk to the city, and great deliberation should take place before Philadelphia forges ahead with speculative theories of liability. Attorneys promoting such lawsuits as their next “get rich” scheme will not detail the pitfalls, so we at the Pennsylvania Coalition for Civil Justice Reform will.

Property owner advocates have joined with personal injury attorneys to urge Pennsylvania counties to sue former lead paint manufacturers under a new “public nuisance” theory modeled on a case brought by several California municipalities against some of the same companies being targeted in Pennsylvania. Their flimsy theory is that lead paint on properties in the commonwealth is a public nuisance, and companies that sold and advertised lead pigments and paint more than a century ago -- at a time when those products were lawful -- are liable for the cost of abating the nuisance. These efforts are driven by contingency-fee-chasing plaintiffs’ lawyers who stand to collect 33 percent of any recovery – money that will not benefit city taxpayers or go toward cleanup and remediation of properties. And the companies being targeted? One, PPG Industries, is headquartered here in Pennsylvania, and another, Sherwin-Williams, employs 2,000 people across the commonwealth.

Before the city wastes time on this litigation, it should be mindful that suits filed in Pennsylvania against former lead-paint manufacturers have failed. In 1993, the court dismissed claims brought by the City of Philadelphia against the Sherwin-Williams Co. and other former manufacturers premised on their past manufacture and sale of lead pigments used in paint. Notably, that decision highlights the City of Philadelphia’s knowledge of the dangers of lead paint to children as early as the 1940s and 1950s, and the city’s knowledge by 1976 of the use of lead paint in its buildings. Those facts have not changed. Courts are not sympathetic to claims that are old, stale, and should have been brought many years before the city’s attempt in 1993.

Philadelphia property owners should recognize the devastating impact such suits would have on homeowners and businesses. If the city sues companies under a public nuisance theory, it is saying that a public nuisance exists inside every home in the city over a certain age. This de facto condemnation by the city and the courts without the approval, participation, or even knowledge of individual homeowners will likely have financial and legal consequences, including mandatory inspections, lower property values, and impediments to property sales. The manufacturing base of the commonwealth will also be at risk under this novel theory of public nuisance. Even if these companies fully comply with all laws in manufacturing and promoting their products, they will be exposed to massive liability if their products one day become hazardous through misuse or disrepair, through no fault of their own.

Rental property owners, threatened by proposals being mulled by Philadelphia that would enhance their existing legal obligations to provide lead-safe housing, want to dodge their responsibility for upkeep through these lawsuits. They seek an abatement program from which they could collect funds for allowing their properties to deteriorate, shifting responsibility from themselves to the manufacturer. But property owners have always been responsible for making sure their tenants are not harmed by conditions on the property. Intact, well-maintained lead paint is not a hazard and does not need to be abated, and federal and local laws already require owners to prevent or remedy peeling or chipping paint hazards. Rigorous enforcement of existing laws to protect renters – not a frivolous new lawsuit – is the most effective way to mitigate the risks to children.

Cities and counties should not fall prey to the siren song of contingency-fee-chasing attorneys promoting novel legal theories and empty litigation that will only hurt property values, threaten manufacturing jobs, and create perverse incentives for landlords not to maintain their properties.

Curt Schroder is the executive director of the Pennsylvania Coalition for Civil Justice Reform.